FDA puts new restrictions on hiring of foreign scientists, documents show

WASHINGTON — The Food and Drug Administration is implementing a new hiring protocol that could make it significantly harder for foreign scientists to find jobs and research opportunities at the agency, according to interviews and newly obtained documents.

The FDA recently began directing hiring managers not to extend any employment offers — including for fellowship and contractor positions — to any individual who has not lived in the U.S. for at least three of the five previous years, according to briefing materials shared with STAT that have been presented to some agency employees.

In the documents, the FDA attributed the new hiring protocol to changes associated with the background checks that every government employee must undergo to obtain an ID card.

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It’s unclear whether other agencies are implementing similar measures. If it is applied more broadly across the government, the policy could upend the research community across federal agencies. The Agriculture Department, the Centers for Disease Control and Prevention, and the Environmental Protection Agency, among others, also host visiting scientists and scholars. A spokeswoman for the National Institutes of Health, which annually hosts thousands of non-citizen scientists from more than 100 countries, said the agency would continue using the protocol it had been using, without any stricter residency requirement.

At the FDA, the change — expected to take effect Oct. 1 — has some staff at the agency “dismayed,” and “stunned,” two employees told STAT in separate interviews.

“It affects a huge chunk of the scientific workforce,” one scientist said, speaking on condition of anonymity because she was not authorized to speak on the matter. “We all heard the presentation and went, ‘What?'”

The scientist called the change “devastating” for the agency’s talent pool and recruitment efforts and suggested that many key staffers would not have been hired if the policy had been in place in the past.

In a statement, a spokeswoman for the FDA said the agency was acting in according with guidance from the Department of Homeland Security, which has authority over the ID cards. “The agency is committed to accurately reflect the DHS policy and will continue to evaluate its implementation plans, and make adjustments as appropriate,” the spokeswoman said.

The new hiring protocol centers on applications for an ID card, known as a Personal Identity Verification or PIV card, that is required for nearly every government employee. To get the card, all employees must undergo a relatively standard background check.

Because the government is now soliciting more information as part of that background check, it can’t complete the investigation unless an individual has lived in the U.S. for three of the last five years, according to the FDA document.

“It is strongly suggested that hiring managers inquire of prospective hires how long they have resided in the U.S. prior to extending an offer,” the document reads.

That had not been the policy in the past, including at the FDA. The official government-wide policy on the ID cards, from 2008, does separate non-citizens into two groups: those who have lived in the U.S. for at least three years, and those who have not. It does not mention a “three-out-of-five” criterion.

The 2008 policy says agencies looking to employ non-U.S. citizens who haven’t lived in the U.S. for three years can delay the background check until they do, and instead rely on a different ID card to conduct their daily business.

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It isn’t clear why the FDA made the change this year. The document cites a Jan. 13 Department of Health and Human Services internal policy document that updates the agency’s procedures for the ID cards. The FDA also referenced the Jan. 13 update from HHS. But an HHS spokesman said the internal document did not include new policies on a residency requirement.

The HHS spokesman said any new background check and ID card policies were government-wide and promulgated by the Office of Personnel Management.

But it was unclear whether the stricter residency requirement referenced in the FDA document is a new policy from OPM, which is in the process of updating federal background check guidelines, or only the FDA’s new interpretation of them, since individual agencies have discretion to go further than OPM rules in their departmental policies.

The HHS spokesman also emphasized that any change related to ID cards and background checks was not a mandate about hiring decisions. Those policies, implemented across the government, “[do] not dictate federal agency hiring authorities,” he said.

Other government agencies, for example, could try to find a workaround for hires that might be able to work temporarily without a PIV card.

At other agencies, including the NIH, for example, non-citizen new hires have been able to go through a separate background check process to obtain a “Restricted Local Access” card, rather than a PIV ID card. That allowed them to be hired even if they did not have access to government data systems. That same process will continue, the NIH spokeswoman said.

At the FDA, that option will no longer be available after Oct. 1.

Visiting scientists are hired under a range of authorities that vary between and even inside federal agencies, and it isn’t clear how many of them rely on PIV cards or would be able to conduct most of their work with an alternate ID card.

The FDA document said the change will not impact non-citizen workers currently employed at the agency.

The document also suggests the policy change had been shared last month with executive officers from the agency’s main security, human resources, and operations teams, its ethics office, the chief scientist and general counsel, as well as the agency’s senior science council.

It’s difficult to determine exactly how many foreign-born individuals work in the U.S. government, but many of the opportunities for non-citizens are in the sciences.

The NIH alone hosts more than 2,000 non-citizen scientists, and staffs an entire office to assist them with immigration and transition issues. The FDA also employs more than 100 visiting scientists and associates, according to a review of agency directories. CDC, too, employs a handful. So do agencies outside of HHS. The EPA has a visiting scientist program, as does the USDA and other research agencies. HHS even offers a training video on its website entitled “Mentoring International Postdocs.”

The scientific community in particular has emphasized the importance of international collaboration. More than 182 professional societies castigated President Trump’s travel ban earlier this year for the impact it would have on industry and academia.

“Scientific progress depends on openness, transparency, and the free flow of ideas and people, and these principles have helped the United States attract and richly benefit from international scientific talent,” the groups wrote. “To remain the world leader in advancing scientific knowledge and innovations, the U.S. science and technology enterprise must continue to capitalize on the international and multicultural environment within which it operates.”

As a long-term contractor at an HHS agency, I can tell you that you can’t do anything without a PIV card. You can’t get into any government building, you can’t use a computer or access government computer systems including e-mail, you can’t clock in, you can’t use staff parking. Collaboration across national boundaries is the rule not the exeption in health agencies, many are the designated agents for US participation in international organizations. Bullying by security agencies (FBI, DHS) or cross-government administrative agencies (OPM, OMB) which have no responsibility for actually getting scientific work done is all too common in even the best of administrations, of which this is not one.

This article confuses me. Federal agencies may only employ United States citizens and nationals (residents of American Samoa and Swains Island) in the competitive service. However, Federal agencies may request OPM approval to appoint a non-citizen, if no qualified U.S. citizens are available.